Wednesday, June 19, 2013

Henry B. HogueSpecialist in American National Government
Maureen BeardenInformation Research Specialist

Under
the Constitution, the President and the Senate share the power to make
appointments to the highest-level politically appointed positions in the
federal government. The Constitution also empowers the President
unilaterally to make a temporary appointment to such a position if it is vacant
and the Senate is in recess. Such an appointment, termed a recess appointment,
expires at the end of the following session of the Senate. This report
identifies recess appointments by President Barack Obama, from the
beginning of his presidency, on January 20, 2009, until June 3, 2013. The
report discusses these appointments in the context of recess appointment
authorities and practices generally, and it provides related statistics.
Congressional efforts to prevent further recess appointments are also
discussed.

As of June 3, 2013, President Obama had made 32 recess appointments, all to
full-time positions. By the same point in his presidency, President
William J. Clinton had made 36 recess appointments, 22 to full-time
positions and 14 to part-time positions. President George W. Bush had made
120 recess appointments, 67 to full-time positions and 53 to part-time
positions. Six of President Obama’s recess appointments had been made
during recesses between Congresses or between sessions of Congress (intersession
recess appointments). The remaining 26 had been made during recesses
within sessions of Congress (intrasession recess appointments).

In each of the 32 instances in which President Obama had made a recess
appointment, the individual had also been nominated to the position to
which he or she was appointed. In all of these cases, a related nomination
to the position preceded the recess appointment. In 19 of the 32 cases, as
of June 3, 2013, the Senate had later confirmed the nominee to the position to
which he or she had been recess appointed. With regard to the 13 remaining
individuals, nominations of 3 were pending; nominations for the other 10
were not.

During the 110th, 111th,
and 112th Congresses, the Senate periodically
used pro forma sessions to prevent the occurrence of a recess of more than
three days. There appears to have been an expectation that this scheduling
would block the President from making recess appointments, based on an
argument that an absence of the Senate of three days or less would not
constitute a “recess” long enough to permit the use of this authority.
However, consistent with a January 2012 opinion of the Office of Legal
Counsel at the Department of Justice, the President reached a different
conclusion as to the effect of this scheduling practice. On January 4, 2012,
during a three-day period of adjournment between two pro forma sessions of
the Senate, the White House announced President Obama’s intent to make
four recess appointments.

As of June 3, 2013, two federal courts of appeals had issued decisions related
to the 2012 appointments and had found the appointments at issue in each
case to be unconstitutional. For further information on these cases and
the issues involved, see CRS Report RL33009, Recess Appointments: A
Legal Overview, by Vivian S. Chu; CRS Report R43030, The Recess Appointment
Power After Noel Canning v. NLRB: Constitutional Implications, by Todd Garvey and
David H. Carpenter; CRS Report R43032, Practical Implications of Noel
Canning on the NLRB and CFPB, by David H. Carpenter and Todd Garvey;
and CRS Report WSLG521, 3rd Circuit:
President’s Recess Appointment Power Only Extends to Intersession Recesses, by
David H. Carpenter.

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